McDougald v. Dillow et al

Filing 55

REPORT AND RECOMMENDATIONS - IT IS RECOMMENDED THAT Defendants' motion forsummary judgment 43 be GRANTED, Plaintiff's motion for summary judgment 34 be DENIED; all remaining pending motions 40 47 53 54 be DENIED as MOOT; and this case be CLOSED. Objections to R&R due by 8/16/2018. Signed by Magistrate Judge Stephanie K. Bowman on 8/2/2018. (km)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JERONE MCDOUGALD,

Case No. 1:16-cv-1099

Plaintiff,
Barrett, J.
Bowman, M.J.

vs
MICHAEL DILLOW, et al.,
Defendants.

REPORT AND RECOMMENDATION
Plaintiff, a prisoner at the Southern Correctional Facility (SOCF) and frequent
litigant in this Court,1 filed this civil rights action in November 2016. This matter is now
before the Court on cross-motions for summary judgment. (Docs. 34, 43).
I. Background and Facts
Plaintiff is currently in the custody of the Ohio Department of Rehabilitation and
Correction (“ODRC”) and is serving his prison sentence at Southern Ohio Correction
Facility (“SOCF”), Lucasville, Ohio.
On November 23, 2016, McDougald filed his complaint alleging various violations
of his First and Eighth Amendment rights relating to pepper spray (“use of force”)

1
See, e.g., Case Nos: 1:08-cv-744 (claim of excessive force during arrest); 1:16-cv-317 (First Amendment
retaliation claims); 1:16-cv-497 (Eighth Amendment claims regarding use of pepper spray on multiple
dates); 1:16-CV-500 (claim relating to medical care for colitis, including allegedly prescribed high calorie
diet); 1:16-cv-633 (case transferred to Eastern Division, reopened as 2:16-cv-545); 1:16-cv-900 (claims
regarding use of pepper spray and retaliation); 1:17-cv-72 (above-captioned case regarding involuntary
blood draw); 1:17-cv-91 (alleged violation of due process rights in RIB hearing, and retaliation claim); 1:17cv-95 (claim regarding use of pepper spray); 1:17-cv-124 (claim regarding use of pepper spray); 1:17-cv127 (claim regarding “flood of biocontaminate” in cell); 1:17-cv-196 (retaliation claim); 1:17-cv-464
(involuntary blood draw), 1:18-cv-80 (pepper spray incident of August 7, 2017); 1:18-cv-93 (September 28,
2017 alleged attack and denial of medical treatment); 1:18-cv-135 (same September 28, 2017 incident);
2:16-cv-545 (claim regarding failure to provide kosher meals). In addition, Plaintiff previously has filed two
petitions for habeas corpus: Case Nos. 1:11-cv-790; 1:16-cv-565. The undersigned recently noted in Case
No. 1:16-cv-500 that Plaintiff appears to be equally litigious in state court.

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deployed against him on October 7, 2016 while incarcerated at SOCF.

(Doc. 1).

Following the Court’s initial screening Order (Doc. 6), McDougald’s allegations include:
Deliberate Medical Indifference (Sgt. Dillow, Osborne, Nurse Reiter, Bauer, Rogers);
Excessive Force (Sgt. Dillow, Osborne); and Retaliation (Sgt. Dillow, Osborne).
McDougald names various Defendants including Bauer, Lt., Dillow, Rogers, Lt., Osborne,
and Nurse Reiter2 and sues each in their individual capacity for $50,000 punitive
damages. Id. Defendants answered McDougald’s complaint on January 17, 2107, which
included several affirmative defenses. (Doc. 9).
McDougald alleges that Osborne bent McDougald’s wrist back “for no reason”
during a cuffing incident on October 7, 2016. McDougald alleges Sgt. Dillow came up to
the cell door and pepper sprayed him followed by both Dillow and Osborne stating “this
is for filing lawsuits.” McDougald alleges that Dillow and Osborne applied excessive force
in violation of his Eighth Amendment rights. McDougald also alleges he was left in a cell
with difficulty breathing and that his requests for help were ignored. (Doc. 1 at 2).
McDougald claims that he requested help when Nurse Reiter and Osborne looked into
his cell during the time that he was suffering the effects of pepper spray but that both
Reiter and Osborne ignored McDougald’s request for help. McDougald believes that
Nurse Reiter violated his Constitutional rights (8th and 14th Amendments) by being
deliberately indifferent to his medical needs. Id. McDougald claims that when Bauer and
Rogers returned to his cell post-application of pepper spray both Bauer and Rogers
ignored his requests for medical attention and decontamination. McDougald claims that

2

Nurse Ryder is actually Nurse Reiter.

2

his Eight Amendment rights were violated as such alleged conduct was cruel and unusual
punishment (Doc. 1 at 2).
Defendants’ however, set forth a different version of facts relating to this incident.
Defendants contend that McDougald, on October 7, 2016, in process of cuffing him at his
cell entrance, began to pull away from the officer and took hold of the remaining cuff that
was not fastened and refused to let go. McDougald refused several direct orders to
release the cuff that he held in his hand. In light of McDougald’s behavior and the danger
of the metal handcuff he maintained in his hand McDougald received a short burst of OC
(“pepper spray”) from Officer Dillow. (Doc. 43, Ex. A, Dillow Interrog. #4, 5, and 6; Ex. B,
Osborne Interrog. #1, 2, 4, 5, 6 and 7; Ex. E, Rules Infraction Board (“RIB”) Pkt. p. 002 ;
Ex. G, Use of Force (“UoF”) Pkt. pp. 002, 004, 005, 006, 007, and 010); and Def. Ex. K,
Institutional Camera Footage).
Thereafter, Officer Dillow asked Plaintiff if he wanted a decontamination shower,
to which Plaintiff replied “go fuck yourself.” (Doc. 43, Ex. G at 2). Defendant Dillow then
contacted medical staff to have Plaintiff examined. Id. RN Reiter provides in her medical
examination report that McDougald was not interested in decontamination nor a medical
check. Moreover, RN Reiter noted that McDougald was in his cell laughing and clapping
and stating words to the effect “I have my lawsuit now.” (See Doc. 43, Ex. G, UoF w/
MER, p. 010; Ex. C, RN Reiter Interrog ¶¶ 2, 3, 5, 6, 8, 10).
McDougald’s conduct was reviewed by the Rules Infraction Board (“RIB”). The RIB
found (and the Warden’s designee concurred) that McDougald violated a number of
inmate rules. (Doc. 43, Ex. F, Ohio Adm. Code; rules 6, 60; Ex. E, RIB, pp. 003-008, 0100011). McDougald refused to attend the RIB hearings and offer his testimony. (Id, RIB

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packet, p. 003). The Use of Force Packet provides pertinent information as to findings of
guilt against McDougald regarding the acts complained of in this case. (Doc. 43, Ex. E,
RIB, pp. 003-008, 010-0011; Ex. F, Ohio Adm. Code; rules 6, 60; Ex. G).
Based on the foregoing, Defendants assert that they acted reasonable under the
circumstance and are therefore entitled to judgment as a matter of law. The undersigned
agrees.
II. Defendants motion for Summary Judgment is well-taken
A. Standard of Review
A motion for summary judgment should be granted if the evidence submitted to
the court demonstrates that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 24748, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving
party must demonstrate the absence of genuine disputes over facts which, under the
substantive law governing the issue, could affect the outcome of the action. Celotex
Corp., 477 U.S. at 323.
In response to a properly supported summary judgment motion, the non-moving
party “‘is required to present some significant probative evidence which makes it
necessary to resolve the parties' differing versions of the dispute at trial.’” Harris v.
Adams, 873 F.2d 929, 931 (6th Cir.1989) (quoting Sixty Ivy Street Corp. v. Alexander,
822 F.2d 1432, 1435 (6th Cir.1987)). The Court must evaluate the evidence, and all
inferences drawn therefrom, in the light most favorable to the non-moving party.
Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348,

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89 L.Ed.2d 538 (1986); Satterfield v. Tennessee, 295 F.3d 611, 615 (6th Cir.2002);
Little Caesar Enterprises, Inc. v. OPPC, LLC, 219 F.3d 547, 551 (6th Cir.2000).
If, after an appropriate time for discovery, the opposing party is unable to
demonstrate a prima facie case, summary judgment is warranted. St. v. J.C. Bradford
& Co., 886 F.2d 1472, 1478 (6th Cir. 1989) (citing Celotex and Anderson). A principal
purpose of summary judgment is to isolate and dispose of factually unsupported claims
or defenses. Celotex, 477 U.S. at 323–24. The moving party need not support its motion
with evidence disproving the opposing party's claims. Rather, the moving party need
only point out there is an absence of evidence supporting such claims. Hartsel v. Keys,
87 F.3d 795, 799 (6th Cir.1996) (citing Celotex Corp., 477 U.S. at 325). Nor must the
Court search the entire record for material issues of fact. Street, 886 F.2d at 1479–80.
The court need only determine “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.” Anderson, 477 U.S. at 251–52. “Where the record
taken as a whole could not lead a rational trier of fact to find for the non-moving party,
there is no ‘genuine issue for trial.’ ” Matsushita Electric Industrial Co. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
B. Eighth Amendment Claims
As noted above, Plaintiff claims that Defendants violated his constitutional rights
to be free from excessive force by deploying pepper spray into his cell in October 2016.
Plaintiff further contends that after the pepper spray incident, Defendants were
deliberately indifferent to his medical needs. Plaintiff also alleges that Defendants took
these alleged actions in retaliation for his prior lawsuits.

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1. Legal Standard for Excessive Force under the Eighth Amendment
A prisoner’s right to be free from the use of excessive force by a prison official is
governed by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 327 (1986). The
“core judicial inquiry” whenever a prison official stands accused of using excessive force
is “whether force was applied in a good-faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm.” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010)
(quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)). Excessive force claims must focus
“on the nature of the force rather than the extent of the injury....” Id. at 34. In making this
inquiry, the Court must consider the need for the use of force; the relationship between
that need and the type and amount of the force used; the threat reasonably perceived by
the responsible official; and the extent of the injury inflicted. See Hudson, 503 U.S. at
7; Whitley, 475 U.S. at 320-321.
“While the extent of a prisoner’s injury may help determine the amount of force
used by the prison official, it is not dispositive of whether an Eighth Amendment violation
has occurred.” Cordell v. McKinney, 759 F.3d 573, 580-81 (6th Cir. 2014) (citing Wilkins,
559 U.S. at 37). “When prison officials maliciously and sadistically use force to cause
harm ... contemporary standards of decency always are violated ... whether or not
significant injury is evident. Otherwise, the Eighth Amendment would permit any physical
punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary
quantity of injury.” Wilkins, 559 U.S. at 37 (quoting Hudson, 503 U.S. at 9). The absence
of a serious injury is nonetheless relevant as a factor that suggests whether the use of
force may “plausibly have been thought necessary” in a given situation. Id.(quoting
Hudson, 503 U.S. at 7).

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Corrections officers do not violate a prisoner’s Eighth Amendment rights when they
use force “in a good-faith effort to maintain or restore discipline.” Roberson v. Torres, 770
F.3d 398, 406 (6th Cir. 2014) (quoting Jennings v. Mitchell, 93 Fed.Appx. 723, 725 (6th
Cir. 2004)). Accordingly, the Sixth Circuit has found no Eighth Amendment violation in
numerous cases involving “the use of ... chemical agents against recalcitrant
prisoners.” Id. (quoting Caldwell v. Moore, 968 F.2d 595, 600 (6th Cir. 1992) (collecting
cases)); Jennings, 93 Fed.Appx. at 725 (“The videotape squarely demonstrates that
Jennings disobeyed repeated direct orders prior to the use of pepper spray.”). See
also Thompson v. Joseph, No. 1:12-cv-992, 2014 WL 1685918, at *7 (S.D. Ohio Apr. 29,
2014) (Report and Recommendation) (Bowman, M.J.), adopted, 2014 WL 2172894 (S.D.
Ohio May 23, 2014) (the defendant was entitled to qualified immunity because “no
reasonable officer would have understood that it violated the Eighth Amendment to
reactively aim chemical spray at Plaintiff in his cell for less than two seconds (based on
the videotape record), in order to force a threatening inmate to retreat and restore
order.”). But see Williams v. Curtin, 631 F.3d 380, 384 (6th Cir. 2011) (the plaintiff stated
a valid excessive force claim when he “allege[d] that, when instructed to ‘pack up,’ he
inquired, ‘What for, sir?,’ at which point an ‘assault team’ entered the cell and used a
chemical agent on him.”).
2. Legal Standard for Denial of Medical Care under the Eighth Amendment
To establish a violation of his Eighth Amendment rights resulting from a denial of
medical care, Plaintiff must show that prison officials acted with “deliberate indifference
to [his] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976); Brooks v.
Celeste, 39 F.3d 125, 127 (6th Cir. 1994). A constitutional claim for denial of medical care

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has objective and subjective components. Farmer v. Brennan, 511 U.S. 825, 834
(1994); Napier v. Madison Cty., 238 F.3d 739, 742 (6th Cir. 2001). The objective
component requires the existence of a “sufficiently serious” medical need. Blackmore v.
Kalamazoo County, 390 F.3d 890, 895 (6th Cir. 2004) (quoting Fanner, 511 U.S. at
834; Estelle, 429 U.S. at 104). A medical need is “sufficiently serious” if it either “has been
diagnosed by a physician as mandating treatment” or “is so obvious that even a lay person
would easily recognize the necessity for a doctor's attention.” Gunther v. Castineta, 561
Fed.Appx. 497, 499 (6th Cir. 2014) (quoting Harrison v. Ash, 539 F.3d 510, 518 (6th Cir.
2008)).
The subjective component requires an inmate to show that prison officials had “a
sufficiently culpable state of mind” in denying medical care. Farmer, 511 U.S. at 834.
“[T]he official must both be aware of facts from which the inference could be drawn that
a substantial risk of serious harm exists, and he must also draw the inference.” Gunther,
561 Fed.Appx. at 500 (quoting Harrison, 539 F.3d at 518). “Knowledge of the asserted
serious needs or of circumstances clearly indicating the existence of such needs, is
essential to a finding of deliberate indifference.” Horn v. Madison Cty. Fiscal Court, 22
F.3d 653, 660 (6th Cir. 1994). In sum, to prove the subjective component, the plaintiff
must show that the official: (a) subjectively knew of a risk to the prisoner’s health: (b) drew
the inference that a substantial risk of harm to the prisoner existed; and (c) consciously
disregarded that risk. Farmer, 511 U.S. at 837.
In opposing defendant’s properly supported motion for summary judgment, plaintiff
must “designate specific facts in affidavits, depositions, interrogatories, or other factual
material” from which a reasonable jury could find in his favor. Maston v. Montgomery Cty.

8

Jail Med. Staff Pers., 832 F. Supp. 2d 846, 849 (S.D. Ohio 2011). He “cannot rest on the
mere allegations of the pleadings.” Id. See also Maston, 832 F. Supp.2d at 851-52
(holding that a pro se party cannot rely on allegations or denials in unsworn filings when
opposing a motion for summary judgment).
Here, McDougald contends he was the subject of excessive force (pepper spray)
and that he was denied medical attention by corrections officials following the OC spray
on October 7, 2016. (Doc. 1). McDougald claims that he requested help when Nurse
Reiter and Osborne looked into his cell during the time that he was suffering the effects
of pepper spray but that both Reiter and Osborne ignored McDougald’s request for help.
As such, Plaintiff claims that Nurse Reiter violated his Constitutional rights by being
deliberately indifferent to his medical needs. (Doc. 1 at 2). McDougald claims that when
Bauer and Rogers returned to his cell post-application of pepper spray both Bauer and
Rogers ignored his requests for medical attention and decontamination. McDougald
claims that his Eighth Amendment rights were violated as such alleged conduct was cruel
and unusual punishment. (Doc. 1).

Notably, Plaintiff cites to the Defendants

interrogatories and incidents reports and asserts that the Defendants gave “false
information.” (Doc. 34, Ex. A-I). However, other than asserting that Defendants version of
the events were false Plaintiff failed to present any evidence to rebut Defendants’ wellsupported version of the events.
Defendants argue that summary judgment should be granted in their favor on
Plaintiff’s Eighth Amendment excessive force claim because the use of pepper spray
under the circumstances constituted a reasonable use of force to gain control of Plaintiff.
(Doc.). Notably, the record establishes that Plaintiff created a dangerous situation by

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refusing direct orders to release a loose cuff. (See Doc. 43, Ex. A, Dillow Interrog. ¶¶ 3,
4, 5, 6; Ex. B Osborne Interrog. ¶¶ 1, 2; Ex. E, RIB Packet, pp. 002, 003, 005, 006, 010,
and 011; Ex. G, Use of Force Packet pp. 002, 004, 005, 006, and 010; Ex. I, DVR, Camera
Footage).
Thus, the undersigned agrees that McDougald’s own conduct brought about this
incident – he refused to let go of one cuff despites several orders to do so, thereby
creating a penological safety issue and discipline situation that required Defendants to
act. The test for whether the use of force violates the Eighth Amendment requires a court
to determine if the defendant's conduct caused the “unnecessary and wanton infliction of
pain.” Moore v. Holbrook, 2 F.3d 697, 700 (6th Cir.1993) (citation omitted). The Eighth
Amendment standard focuses on the official's “obdurancy and wantonness” and asks
“whether force was applied in a good faith effort to maintain or restore discipline or
maliciously and sadistically for the very purpose of causing harm.” Id. at 319–21.
The evidence establishes that the use of pepper spray by Defendant Dillow was a
reasonable and minimal response to a noncompliant McDougald. Defendants Dillow and
Osborne were entitled to use force to maintain order. Whitley v. Albers, 475 U.S. 312,
319 (1986). Notably, a short burst of pepper spray is not disproportionate to the need to
control an inmate who has failed to obey an order. See Jennings v. Mitchell, 93 F. App'x
723, 725 (6th Cir. 2004) (holding that officers did not violate an inmate's Eighth
Amendment rights when they pepper sprayed him after he refused to obey orders);
Thomas v. Greene, No. 99-3179, 1999 U.S.App. LEXIS 34054, 1999 WL 1253102 (6th
Cir. Dec. 17, 1999) (affirming dismissal of prisoner's excessive force claim upon finding
that he was uncooperative and threatening prior to being pepper sprayed); White v.

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Fowler, 881 F.2d 1078 (6th Cir. 1989) (holding that officer was entitled to summary
judgment on Plaintiff's excessive force claim even though Plaintiff was shackled when
officer sprayed him with mace on a bus because the officer needed to restore “discipline
and security to the bus”).
Plaintiff’s claim for denial of medical care also fails as a matter of law. In order to
prevail on a claim of a violation of a prisoner’s rights in relation to his medical care, e.g.,
deliberate medical indifference, the inmate must allege facts evidencing deliberate
indifference on the part of the defendant to the prisoner’s serious medical needs. Wilson
v. Seiter, 501 U.S. 294, 297 (1991); Estelle v. Gamble, 429 U.S. 97, 104 (1976). While
deliberate indifference does not require proof of intent to inflict pain or a detailed inquiry
into the state of mind of the prison official, the official’s acts or omissions must
demonstrate a knowing indifference to the prisoner’s serious medical needs. Weeks v.
Chaboudy, 984 F.2d 185, 187 (6th Cir. 1993).
Here, the evidence of record establishes that Defendants were not deliberately
indifferent to McDougald’s follow-up to the pepper spray incident. Notably, Defendants
made several affirmative attempts by offering assistance to McDougald. The record
shows that McDougald was offered decontamination and was seen by a nurse shortly
after he was sprayed. RN Reiter’s responses to McDougald’s interrogatories and her
MER support Defendants’ position that McDougald was in fact offered decontamination
following the pepper spray incident but that McDougald refused attention. (See Doc. 43,
Ex. C, Reiter, RN Answers to Plaintiff’s Interrogatories, pp. 1-3). See also RN Reiter’s
MER found at Def. Ex. G, UoF packet, containing medical exam report, at p. 010).

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Moreover, McDougald has a sink and soap in his cell if he needed to wash off the pepper
spray. (Doc. 43, Ex. B, pp 1-2).
Deliberate indifference requires that the official both know of and disregard an
excessive risk to the inmate’s health or safety; that is, the official “must both be aware of
facts from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837
(1994). Negligence in regard to the prisoner’s medical needs does not amount to
deliberate indifference. Hicks v. Frey, 992 F.2d 1450, 1455 (6th Cir. 1993). In opposing
defendant’s properly supported motion for summary judgment, plaintiff must “designate
specific facts in affidavits, depositions, interrogatories, or other factual material” from
which a reasonable jury could find in his favor. Maston, 832 F. Supp.2d at 849. He “cannot
rest on the mere allegations of the pleadings.” Id.
Here, Plaintiff’s motion for summary judgment as well as his response in opposition
to defendants’ motion for summary judgment rests primarily on self- serving unsworn
statements to support his denial of medical care claim. Notably, Plaintiff claims that after
officers sprayed him with pepper spray, he was left “to burn and suffer with no offer of
decontamination” (Doc. 34 ). Similar to his claim for excessive force, Plaintiff simply
asserts that Defendants gave false statements on the incident reports as well as their
answers to Plaintiff’s interrogatories. As such, Plaintiff failed to present any evidence to
establish that he was denied proper medical care and/or that Defendants were
deliberately indifference to his serious medical needs. see Maston, 832 F. Supp.2d at
851-52 (holding that a pro se party cannot rely on allegations or denials in unsworn filings
when opposing a motion for summary judgment).

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Thus, because plaintiff has failed to submit any evidence creating a genuine issue
of fact as to whether Defendants' use of force was reasonable under the circumstances
and whether Defendants denied him proper medical treatment, summary judgment
should be granted to Defendants Bauer, Dillow, Osborne, Reiter, Rogers on plaintiff’s
Eighth Amendment excessive force and denial of medical care claims.
C. Retaliation
Plaintiff also asserts that Defendants retaliated against him for exercising his First
Amendment rights by filing grievances and/or lawsuits.

As detailed above, Plaintiff

alleges that Sgt. Dillow came up to the cell door and pepper sprayed him followed by both
Dillow and Osborne stated “this is for filing lawsuits.” (Doc. 1).
To state a retaliation claim, a plaintiff must allege three elements: (1) that he or
she was engaged in protected conduct; (2) the adverse action was taken against him or
her that would deter a person of ordinary firmness from continuing to engage in that
conduct; and (3) the adverse action was motivated at least in part by the plaintiff’s
protected conduct. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999).
In applying these elements to Plaintiff’s claims, Defendants first argue that Plaintiff
was not engaged in protected conduct. Notably, at the time Plaintiff was sprayed with
pepper spray, the records evidence indicates that he violated penological rules by failing
to follow direct orders to release a loose cuff. (Doc. 43, Ex. A, Dillow Interrog. #4, 5, and
6; Ex. B, Osborne Interrog. #1, 2, 4, 5, 6 and 7; Ex. E, RIB Pkt. p. 002; Ex. G, UoF Pkt.
pp. 002, 004, 005, 006, 007, and 010). Furthermore, as detailed above, Plaintiff has filed
numerous lawsuits in federal court and Ohio’s Court of Claims following any brief incident
involving SOCF personnel’s application of pepper spray.

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With respect to the third element, Defendants contend that use of a short burst of
pepper spray came about as a reasonable use of force against a prisoner in a maximumsecurity prison that refused to let go of a hand cuff that he could have used against the
officers and/or potentially injure himself. (See Doc. 43, Ex. A, Dillow Interrogs, ¶¶ 4, 5, 6;
Ex. B. Osborne Interrogs ¶¶ 1, 2, 5, 7; Ex. E, RIB, 002, 006, 010 and 011; Ex. G, UoF,
pp. 002, 004, 005, 006). As such, Defendants contend that the use of pepper spray was
not motivated by Plaintiff’s alleged protected conduct. The undersigned agrees.
Notably, “conclusory allegations of retaliatory motive ‘unsupported by material
facts will not be sufficient to state ... a claim under §1983.’” Harbin–Bey, 420 F.3d at 580,
quoting Gutierrez v. Lynch, 826 F.2d1534, 1538–39 (6th Cir. 1987); see also Murray v.
Unknown Evert, 84 F. App'x 553, 556 (6th Cir. 2003) (in complaints screened pursuant to
28 U.S.C. § 1915A, “[c]onclusory allegations of a retaliatory motive with no concrete and
relevant particulars fail to raise a genuine issue of fact for trial”) (internal quotations
omitted); Lewis v. Jarvie, 20 F. App'x 457, 459 (6th Cir. 2001)(“bare allegations of malice
on the defendants' parts are not enough to establish retaliation claims”). “[A]lleging merely
the ultimate fact of retaliation is insufficient.” Murphy v. Lane, 833 F.2d 106, 108 (7th Cir.
1987). Retaliation claims must include a “chronology of events from which retaliation may
plausibly be inferred.” Ishaag v. Compton, 900 F.Supp. 935 (W.D. Tenn. 1995), quoting
Cain v. Lane, 857 F.2d 1139, 1143 n.6 (7th Cir. 1988).
Here, Plaintiff has provided nothing beyond conclusory assertions to suggest that
Officer Dillow and or Osborne “retaliated” against McDougald. To the contrary, the
evidence establishes that Defendants deployed pepper spray after Plaintiff failed to

14

comply with several direct orders from the officers. Accordingly, Defendants are entitled
to judgment as a matter of law with respect to Plaintiff’s retaliation claim.
D. Qualified Immunity
In their last argument in favor of summary judgment, Defendants assert that they
are entitled to qualified immunity on claims filed against them in their individual capacities
because they acted reasonably under the circumstances. Qualified immunity protects
government officials “from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d
396 (1982). Qualified immunity not only insulates government officials from individual
liability for money damages, but from the burdens and expenses of litigation and trial.
Saucier v. Katz, 533 U.S. 194, 200–201 (2001). The doctrine of qualified immunity is
intended to balance the following competing interests: “the need to hold public officials
accountable when they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties reasonably.” Pearson,
555 U.S. at 231.
Qualified immunity “‘gives ample room for mistaken judgments by protecting ‘all
but the plainly incompetent or those who knowingly violate the law.’” Hunter v. Bryant,
502 U.S. 224, 229 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 343, 341 (1986)). See
also Dorsey v. Barber, 517 F.3d 389, 394 (6th Cir. 2008). Qualified immunity applies
regardless of whether the official's error was a mistake of law or a mistake of fact, or a
mistake based on mixed questions of law and fact. Pearson, 555 U.S. at 231.

15

Here, the record evidence clearly established that any use of force by Defendants
was “applied in a good-faith effort to maintain or restore discipline” and not “maliciously
and sadistically to cause harm.” Hudson, 503 U.S. at 6-7. The record further establishes
that Defendants were not deliberately indifferent to his serious medical needs. As such,
Plaintiff has failed to establish that he suffered a deprivation of any clearly established
statutory or constitutional right that a reasonable official would understand violated the
same. Therefore, the Defendants are immune from Plaintiff's claims for excessive force
and are entitled to judgment as a matter of law.
III. Conclusion
For these reasons, is therefore RECOMMENDED that Defendants’ motion for
summary judgment (Doc. 43) be GRANTED, Plaintiff's motion for summary judgment
(Doc. 34) be DENIED; all remaining pending motions (Docs. 40, 47, 53, 54) be DENIED
as MOOT; and this case be CLOSED.
s/Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

16

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JERONE MCDOUGALD,

Case No. 1:16-cv-1099

Plaintiff,
Barrett, J.
Bowman, M.J.

vs
MICHAEL DILLOW, et al.,
Defendants.
NOTICE

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after
being served with a copy thereof. That period may be extended further by the Court on
timely motion by either side for an extension of time. All objections shall specify the
portion(s) of the R&R objected to, and shall be accompanied by a memorandum of law in
support of the objections. A party shall respond to an opponent’s objections within
FOURTEEN DAYS after being served with a copy of those objections. Failure to make
objections in accordance with this procedure may forfeit rights on appeal. See Thomas
v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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